War Crimes and Punishment

That was the toast proposed by Stalin to Roosevelt and Churchill over dinner in 1943 in Tehran. They were meeting for the first time and the discussion had turned to the fate of Nazi leaders following Germany’s defeat. Stalin wanted no fewer than 50,000 of them executed. Churchill, much as he despised Nazis, considered mass summary executions dishonorable. Roosevelt, “in an apparent attempt to lighten the conversation, suggested perhaps forty-nine thousand would be adequate.”

William Shawcross recounts this exchange early in his new book: “Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed.” A distinguished journalist (a phrase I do not employ promiscuously), Shawcross brings a strong dose of common sense to the fevered debate over what constitutes due process and proper treatment for those now waging an unconventional war against the West. He also brings a unique pedigree: His father, Hartley Shawcross, was Britain’s lead prosecutor at the military tribunal that became known as the Nuremburg Trials.

In hindsight, it’s easy to imagine that Nuremberg was the inevitable culmination of World War II. But as Hartley Shawcross understood and William Shawcross makes clear, “there was absolutely no precedent.” George Orwell was among those who believed it was a bad idea. He predicted such “cruel pageantry of the law” would focus “a romantic light on the accused.”

Chief prosecutor (and U.S. Supreme Court Justice) Robert Jackson saw things differently: “We must make it clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the War, but that they started it.” Nazis would be charged also with “crimes against humanity,” a completely new legal concept that “encompassed the persecution of racial and religious groups.”

What has all this to do with 9/11 and Khalid Sheikh Mohammed, the terrorist currently incarcerated at Guantanamo? Shawcross explains: